Oklahoma

Open Government Guide

Author

Foreword

Oklahoma has had an Open Meeting Act since 1959. The original statute consisted of a single paragraph with general language and no definitions. In 1978 the old act was repealed and replaced with a much more expansive model which has remained in place to the present time.

For more than forty years, the Oklahoma Open Records Act consisted of a single paragraph:

It is hereby made the duty of every public official of the State of Oklahoma, and of its subdivisions, who are required by law to keep public records pertaining to their said offices, to keep the same open for public inspection for proper purposes, at proper times and in proper manner, to the citizens and taxpayers of the State, and its subdivisions, during all business hours of the day; provided, however, the provisions of this Act shall not apply to income tax returns filed with the Oklahoma Tax Commission, or other records required by law to be kept secret.

51 O.S. § 24 (repealed).

This statute was subsequently re-written and has been a source of constant amendment as governmental entities attempt to expand the umbrella of confidentiality.

Open Records Act

The longevity of this Act was undoubtedly because the burden was on the public official to demonstrate that the record was confidential under an existing statute. However, the Oklahoma Open Records Act became the subject of amendment efforts when two 1984 Oklahoma Supreme Court decisions effectively weakened the plain meaning of the statute.

The first decision dealt with access to records maintained by the Governor concerning the expenditure of legislatively appropriated funds for his mansion account. The Court ruled that the records, even though maintained to document the expenditure of public funds, were not specifically required to be kept. Oklahoma City News Broadcasters Ass'n Inc. v. Nigh, 1984 OK 31, 683 P.2d 72. The statute authorizing the Governor's mansion fund was silent as to confidentiality of any records maintained on fund expenditures, i.e. the statute did not require the records to be kept confidential. The conflict between the Governor's office and the news media was subsequently resolved by the legislature which amended the mansion account statute to require an itemized report of all expenditures made by the Governor in the mansion account. However, this did not allow for access to records of expenditures prior to the amendment. The conflict continues.In 2014, the Oklahoma Supreme Court held that the separation of powers in the Oklahoma Constitution conferred an executive privilege to the Governor that cannot be encroached upon by Legislative acts, including the Oklahoma Open Records Act.Vandelay Entertainment, LLC v. Fallin, 2014 OK 109.

The second Oklahoma Supreme Court case involved access to arrest records maintained by a city police department. The high court held that state law was silent as to whether these records had to be kept by the police departments and thus under state law police departments could not be required to release these records. However, the charter of the city involved in this dispute contained a provision which required maintaining the records and thus the records were required to be released. Oklahoma Pub. Co. v. City of Moore, 1984 OK 40, 682 P.2d 754.

Because of these decisions and their broad impact, the Open Records Act was amended. The first significant changes included (1) the incorporation of language from the Oklahoma Open Meeting Act to define a public record and a public office as that which concerns "the transaction of public business, the expenditure of public funds or the administering of public property"; (2) requiring that all public offices and officials maintain records concerning their office and specifically required that records "of the receipt and expenditure of any public funds effecting all financial and business transactions" be kept; and (3) requiring law enforcement bodies to make available facts concerning the arrest, conviction information, disposition of all warrants, criminal summaries, and jail registers.

The issue of what comprises a law enforcement record continues to the present time.In 2012, the Attorney General held that mug shots in possession of law enforcement were records under the Open Records Act. In 2014, the Oklahoma Court of Civil Appeals held that a law enforcement agency’s dash cam video recording of an arrest is a record under the Act.Ward & Lee, P.L.C. v. City of Claremore, 2014 OK CIV APP 1.To resolve the issue of dash cams and body cams, the Legislature in 2014 amended the law enforcement section of the Oklahoma Open Records Act (51 O.S. § 24A.8) to provide that audio and video recordings attached to law enforcement vehicles (24A.8.A.9) and to law enforcement personnel (24A.8.A.10) were public records under the Act.

While the Act did establish numerous new exemptions for some public records, the Act has been a significant improvement over the old law as interpreted by the courts.

Even though the amended Act did not contain any legislation concerning the right of privacy, the Oklahoma Supreme Court found that the right should be considered when releasing records. Tulsa Tribune Co. v. Oklahoma Horse Racing Commission, 1986 Okla. 24, 735 P.2d 548. In 1986, the media sought access to financial statements filed with the Oklahoma Horse Racing Commission by the successful applicant for establishing a race track and facilities in Oklahoma City. The financial data sought was submitted as part of the application process. The Oklahoma Supreme Court found that the legislators had intended to create a privacy act similar to the federal Privacy Act. The Court held that the legislature intended to provide exemptions from disclosure where the release of information possessed by a public body might be damaging to an individual. The Court not only found a "privacy act," it also established an administrative procedure to be followed when the "privacy act" was invoked. The Court held that the public body must give notice to the individual about whom the information is sought that a request has been made and that the individual has an opportunity to file a written objection to disclosure with the public body within a reasonable time following the notification. The Court did say that the burden was on the person seeking to limit disclosure to show why he was entitled to the exemption.

In its 1988 session, the Oklahoma Legislature addressed the Supreme Court ruling creating a privacy act in the Oklahoma law. The language setting forth the purpose of the Act was amended to state:

As the Oklahoma Constitution recognizes and guarantees, all political power is inherent in the people. Thus, it is the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government. The Oklahoma Open Records Act shall not create, directly or indirectly, any rights of privacy or any remedies for violation of any rights of privacy; nor shall the Oklahoma Open Records Act, except as specifically set forth in the Oklahoma Open Records Act, establish any procedures for protecting any person from release of information contained in public records. The purpose of this act is to ensure and facilitate the public's right of access to and review of government records so they may efficiently and intelligently exercise their inherent political power. The privacy interests of individuals are adequately protected in the specific exceptions to the Oklahoma Open Records Act or in the statutes which authorize, create or require the records. Except where specific state or federal statutes create a confidential privilege, persons who submit information to public bodies have no right to keep this information from public access nor reasonable expectation that this information will be kept from public access; provided, the person, agency or political subdivision shall at all times bear the burden of establishing such records are protected by such a confidential privilege. Except as may be required by other statutes, public bodies do not need to follow any procedures for providing access to public records except those specifically required by the Oklahoma Open Records Act.

51 O.S. § 24A.2.

In 1993, the Oklahoma Supreme Court recognized that the legislature had disagreed with the court's creation of an administrative procedure to protect alleged privacy interests.

These amendments [51 O.S. § 24A.2.] to the Oklahoma Open Records Act show beyond credible argument to the contrary that the legislature disagreed with our interpretation, in Tulsa Tribune, of the Act. . . . Given this strong public policy it is not surprising that the Act, as amended, grants no right to notice and hearing, or any other procedural protection, with respect to the records covered by the Act's terms. Further, the Act relieves public bodies of any obligation to provide any procedural protection not 'specifically required' by the Act or another statute. These provisions ensure that the public will have 'prompt and reasonable access' to governmental records.

City of Lawton v. Moore, 1993 OK 168, 868 P.2d 690, 692.

In 1996, the Oklahoma Court of Appeals reiterated the Supreme Court's conclusion.

There is, however, no provision in the Open Records Act which allows a court to balance an individual's interest in having records remain private and the public's interest in having access to the records. The Legislature has determined by statute that the public's interest is greater, except where specific statutory exemption is given.

State of Oklahoma v. Migliaccio, 1996 OK CIV APP 37, 917 P.2d 483.

The Appeals Court stated that:

In City of Lawton, the Court, notwithstanding its holding in Tulsa Tribune that notice must be given to persons affected by release of records, held Lawton was not required to give notice under the amended Act which said public bodies need follow only those procedures in the Act. The Supreme Court found the amended Act's lack of a notice requirement was intended by the Legislature to ensure the public had prompt and reasonable access to governmental records.

Id.

In 2009, however, an opinion issued by the Oklahoma Attorney General essentially revived the notion that an individual must be given notice before the public body can release certain information about the individual. The Attorney General noted that “the presumption would be that they [dates of birth] are open unless the exception [for privacy] is (1) claimed and (2) found to outweigh the public interest in the requested record.” He further wrote that a “general policy prohibiting disclosure would constitute a legislative determination beyond the authority of the public body.” 2009 OK AG 33. At issue in this opinion was the right of public bodies to deny access to portions of public documents containing identifying information (such as birth dates) of public employees. As a result of the opinion, litigation has ensued between the public employees association and several new media outlets as to the private nature of this identifying information. If the public bodies continue to deny access to identifying information about public personnel, the public will be unable to correctly discern from the name alone who is the subject of public action. This will lead to misidentifications causing more harm than the alleged privacy claim.Despite this concern, the Supreme Court has held that release of birth dates and employee identification number of state employees would constitute a clearly unwarranted invasion of personal privacy.Okla. Public Employees Assoc. v. State ex rel Okla. Office of Personnel Management, 2011 OK 68.

Open Meeting Act

While the Act has been improved through the years, there are still problem areas remaining. Two of the more important areas of concern from the inception of the Act have centered upon enforcement of the Act and the definition of committees and subgroups which fall under the Act. These issues remain today.

Criminal Enforcement. The 1990s saw a greater effort on the part of some law enforcement officials to enforce the Open Meeting Act through criminal prosecutions. On at least three occasions, criminal complaints have been filed against public officials for alleged violations of the Act. While two of the cases against public officials were dismissed — and the dismissals were upheld by the Oklahoma Court of Criminal Appeals in unreported cases — one case resulted in three members of a city commission pleading guilty to two misdemeanor counts involving violations of the Act.

In the one case where guilty pleas were entered, the commissioners had been accused of meeting among themselves and deciding to fire the city manager and replace him with another individual. Suspicion was first raised when both actions were taken without any discussion during the public meeting. A district attorney's investigator subsequently uncovered the times and locations of the meetings in which the three commissioners had made the decisions.

While the other two criminal prosecutions were dismissed by the Courts, one did lead to a change in the Act. Members of a board were charged with violating the Act when they refused to allow a member of the public to tape record the public meeting. The charges were dismissed because the Court found the Act did not specifically allow the public to tape record meetings. While the case was on appeal, the Oklahoma legislature amended the Act to include a provision for the public to record — with audio or video machines — the public meetings.

It is today very difficult to obtain a criminal prosecution of a violation of the Act. This is true even though there has been an increase in civil actions that have resulted in determinations that public bodies had violated the Act.

Committees Appointed by Public Bodies. In 1978, in a case which was appealed prior to but considered after the present Open Meeting Act was passed by the legislature, the Oklahoma Supreme Court upheld a lower court decision that a subcommittee was merely advisory in nature and therefore not subject to the Act. The lower court decision was, at least in part, why the Act was amended. In Sanders v. Benton, 1978 Okla. 53, 579 P.2d 815, the Supreme Court considered a challenge to the Board of Corrections' selection of a community treatment center site because the board's selection had been made based on recommendations by a citizens' advisory committee which did not hold any open meetings. The Court concluded that the committee was merely acting in an advisory capacity and thus would not be subject to the Act.

If Sanders had been decided under the amended Act, the result may have been different because a specific definition of public bodies is contained in the new Act. This definition includes virtually all groups who are appointed by and have dealings with elected public bodies and officials. The key language in the Act now provides that any entity "supported in whole or in part by public funds, or entrusted with the expending of public funds, or administering public property" shall be a "public body" for purposes of the Open Meeting Act.

However, the Supreme Court has subsequently addressed the applicability of the Sanders decision under the new law and has specifically upheld its application. International Ass'n of Firefighters, Local No. 2479 v. Thorpe, 1981 OK 95, 632 P.2d 408. The issue in International Ass’n of Firefighters was whether Sanders extended to individuals. The City Manager engaged in negotiations with the firefighters on the collective bargaining agreement. The Court held the that the City Manager did not have the authority to bind city to an agreement and thus the collective bargaining negotiations were not open meetings.

Thus, an advisory committee created by a public body and having no actual or de facto decision-making authority is not subject to the Act.

Open Records

I. Statute

A. Who can request records?

1. Status of requester

Any person has the right of access to and review of government records. 51 O.S. § 24A.2. The Act does not limit access based on the purpose for which the documents are sought nor does it restrict future use of the information received. State agencies may not require that a requester enter into a written contract to obtain public records. 1999 OK AG 55.

2. Purpose of request

While a requester's purpose will not affect his right to receive records, if the request is for a commercial purpose, it can impact on the fees a public body may charge to make the records available. 51 O.S. O.S. § 24A.5.3. State agencies may require from requesters only information designed to allow the agency to comply with the Act. 1999 OK AG 55.

3. Use of records

While the Act generally places no restrictions on subsequent use of information provided, there is a prohibition against copying or mechanically reproducing land description tract indexes for the purpose of sale of the information. 51 O.S. § 24A.5.5

4. Can an individual request records on behalf of a third party or organization?

B. Whose records are and are not subject to the Act

1. Executive branch

Records of executive office are open by the Act. 51 O.S. § 24A.3.

If the record is generated in connection with the transaction of public business, the expenditure of public funds or the administering of public property, then it is a public record. 51 O.S. § 24A.3. However, the Oklahoma Supreme Court has ruled that the separation of powers found in the state Constitution confers a qualified deliberative process privilege upon the Governor that is protected from encroachment by Legislative acts, including the Open Records Act.Vandelay Entertainment, LLC v. Fallin, 2014 OK 109.The Governor had claimed an executive privilege involving communications between the Governor and senior executive branch officials who were offering advice and counsel to the governor.Finally, the Governor's Security and Preparedness Executive Panel, created in the aftermath of the terrorist strikes on the United States, is not a public body and its records are not subject to the ORA. 2002 OK AG 5.

2. Legislative bodies

Records of the legislature or of individual legislators are not subject to the Act except for records kept and maintained on receipt and expenditure of any public funds reflecting all financial and business transactions relating thereto. 51 O.S. § 24A.3.2. However, a copy of a written or electronic communication "created by" a third-party public body or official and sent to a legislator would be a record of the creating public body or official subject to the Oklahoma Open Records Act in its custody, control or possession. A written or electronic communication from a legislator sent to a third-party public body or official would become a "record" upon being "received by" the public body or official and thereby become subject to the Act in the custody, control or possession of the third-party public body or official. 2008 OK AG 19. Records of expenses incurred by employees of the Legislature in the performance of their official duties or authorized actions which are reimbursed by the Legislature are public records. 2008 OK AG 19. A written request for the issuance of a formal written Attorney General Opinion made by a member of the Legislature is a record under the Act.2015 OK AG 3.

3. Courts

All Court records are subject to the Act unless otherwise identified by statute to be confidential.51 O.S. 24A.30.There are no provisions under the Act that allow parties to simply agree to erase from the public records.Shadid v. Hammond, 2013 OK 103.See also Ober v. State ex rel. Department of Public Safety, 2016 OK CIV APP 2 (Reversal of District Court order sealing record based on defendant’s claim that the sealing was necessary because it could interfere with future employment opportunities).Once a pleading is filed with the Court Clerk, it must be made available for public inspection. 1999 OK AG 58.A video tape viewed in an open court proceeding found to be a part of the court proceedings, even though not marked as an exhibit, and thus should be placed in the files of the court clerk.Oklahoma Assoc. of Broadcasters, Inc. v. City of Norman, 2016 OK 19.Audio recordings of court proceedings filed with or maintained by court clerks are public records unless they are properly sealed by court order or specifically exempt from disclosure by law.2014 OK AG 1.However, records of judges or justices are not subject to the Act except as they relate to receipt of public funds reflecting all financial and business transactions. 51 O.S. § 24A.3.2., § 24A.4.

4. Nongovernmental bodies

Any entity "supported in whole or in part by public funds" is subject to the Act. 51 O.S. § 24A.3

If they have a connection with the transaction of public business, the expenditure of public funds or the administering of public property, they are covered under the Act. 51 O.S. § 24A.3.A public trust is a public body and is required to comply with the Act.2010 OK AG 1.A wholly owned intermediary of the Oklahoma Capital Investment Board, a public entity created to stimulate economic development, would be a public body under the Act because it is entrusted with the expenditure of funds.2012 OK AG 1.However, the Oklahoma Court of Civil Appeals has held that a not-for-profit insurance provider created by the Legislature was not a public body, even though four public officials constituted its Board of Managers.CompSource Okla. v. Nat’l Am. Ins. Co., 2012 OK CIV APP 22.

5. Multi-state or regional bodies

If they have a connection with the transaction of public business, the expenditure of public funds or the administering of public property, they are covered under the Act. 51 O.S. § 24A.3.2. An entity formed by multiple counties pursuant to statutory authorization and performing a delegated function, such as self-insurance, which would otherwise be done by the individual counties and which receives funding from such county governments is subject to the Act. 1999 OK AG 37.

6. Advisory boards and commissions, quasi-governmental entities

If they have a connection with the transaction of public business, the expenditure of public funds or the administering of public property, they are covered under the Act. 51 O.S. § 24A.3.2. The Grand River Dam Authority Lakes Advisory Commission, created to advise the GRDA and to provide a list of names from which the governor must appoint as a GRDA Board member, is subject to the Act. 2002 OK AG 44. The Silver Hair Legislature, composed of citizens who meet annually at the state capitol to discuss issues pertaining to senior citizens, is covered by the ORA. 2002 OK AG 42.

7. Others

C. What records are and are not subject to the act?

1. What kinds of records are covered?

All documents regardless of physical form "created by, received, under the authority of, or coming into the custody, control or possession of public officials, public bodies, or their representatives in connection with the transaction of public business, the expenditure of public funds or the administering of public property" are records available for public inspection. Records do not include computer software, non-governmental personal effects temporarily coming into the possession of a public body or official, unless disclosure is otherwise required by law, vehicle movement record of the Oklahoma Turnpike Authority obtained in connection with the electronic toll collection system, personal financial information, credit reports or other financial data obtained by or submitted to a public body for the purpose of evaluating credit worthiness, obtaining a license, permit or for the purpose of becoming qualified to contract with a public body. 51 O.S. § 24A.3.1. A public body that contracts with a private vendor to provide electronic access to and reproduction of the public body's records at another location or through the world wide web, is still required to provide access to its records for inspection, copying, or mechanical reproduction at the public body's office, pursuant to the Open Records Act. 2005 OK AG 3.

2. What physical form of records are covered

All physical forms of records are available for public inspection. An agency may not require execution of a contract before allowing access to records in paper form. 1999 OK AG 55. E-mails in either electronic form or paper form are subject to the Act. 2001 OK AG 7. While a public body may not be required to maintain records in an electronic format, if the public body elects to maintain records in an electronic format, then the records must be provided in electronic format when requested. 2006 OK AG 35. The statutory definition includes any method of memorializinginformation.Fabian & Assoc., PC v. State ex rel. Dep’t of Public Safety, 2004 OK 67.

3. Are certain records available for inspection but not copying?

All records available for inspection may be copied. An agency may not create a distinction between the public's ability to inspect or copy records. 1999 OK AG 55. After years of allowing the copying of records, law enforcement agencies began asserting that the Act’s requirement that “law enforcement agencies shall make available for public inspection” found in 51 O.S. § 24A.8(A) specifically recognized that copies of law enforcement records did not have to be provided to the public. The Legislature amended that section to now include the language “for public inspection and copying.”51 O.S. § 24A.8(A).See also Oklahoma Association of Broadcasters v. City of Norman, 2016 OK 119, ¶ 27 (Although decided after the statute was amended, the Supreme Court held that the Plaintiff would have been entitled to copy a video tape because “we are compelled to define the public’s right to inspect a record . . . as including their right to obtain a copy of the record.”).

4. Telephone call logs

5. Electronic records (e.g., databases, metadata)

Included in the definition of "record" is "data files created by or used with computer software, computer tape, disk and record . . . regardless of physical form or characteristic." 51 O.S. § 24A.3.1. Excluded from this definition of record is "computer software."

a. Can the requester choose a format for receiving records?

The public body is not required to provide the record in any format other than that maintained by the public body. See 51 O.S. § 24A.18. An agency may convert the record into the requested electronic format but is not required to do so.2012 OK AG 22.

b. Can the requester obtain a customized search of computer databases to fit particular needs

While this issue has not been directly addressed, the Attorney General has twice opined, when asked to examine what is a reasonable charge for providing access to electronic records, that one factor to be considered is the cost for "any hardware or software specifically required to fulfill the request and reproduce the record in computer-readable format which would not otherwise generally be required or used by the public body." See 1996 OK AG 26 and 2005 OK AG 21. See also 1999 OK AG 55 (a public body does not have to convert records to a certain form merely because a person may request a specific form).

c. Does the existence of information in electronic format affect its openness?

"Record" is defined in the Act as "all documents . . . regardless of physical form or characteristic". 51 O.S. § 24A.3(1). See also 2001 OK AG 46 ("If the document is created in connection with the transaction of public business, the expenditure of public funds or the administering of public property, it is a 'record' and is therefore subject to the Open Records Act. This is true without regard to the physical characteristics of the document.");Fabian & Assoc., PC v. State ex rel. Dep’t of Public Safety, 2004 OK 67 (The statutory definition includes any method of memorializing information).The Attorney General has stated that the public's right of access to the records at times must be balanced against the obligation of an agency to protect records from destruction or alteration. 85 OK AG 36. The Attorney General found that the public body must have a system with an environment that permits electronic access and also protects the integrity of the records. Further, if the public body cannot provide the record in an electronic format and protect confidential information in the record, then the agency must provide the record in a format in which the confidential information can be redacted. 2001 OK AG 46.

If a public body contracts with a private vendor to provide electronic access to and reproduction of the public body's records at another location or through the internet, it is still required to provide access to its records for inspection, copying, or mechanical reproduction at the public body's office in either original or approved duplicated format. If the public body has more than one office location, its records must be maintained and made available to the public at the office where the records are located in the ordinary course of business. 2005 OK AG 3.

7. Text messages and other electronic messages

8. Social media posts

9. Computer software

10. Can a requester ask for the creation or compilation of a new record?

D. Fee provisions

1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

"Notwithstanding any state or local provision to the contrary" a public body may recover only the reasonable, direct costs of copying and in no instance shall the cost be more than 25 cents per page for documents less than 8 1/2 x 14 inches or a maximum of one dollar for a certified copy. However, if the request is made solely for a commercial purpose or would cause excessive disruption in gathering the documents, then the public body can charge a reasonable fee to recover the direct cost of the document search. 51 O.S. § 24A.5.3. This provision has been held not to apply to court records because of a superceding state law which provides that “notwithstanding any other provision of law” court clerks may charge one dollar for copying the first page of a document and 50 cents for each subsequent page. 2009 OK AG 27. Obtaining public documents for publication in a newspaper or broadcast by news media is not considered a commercial purpose. 51 O.S. § 24A.5.3. Fees charged by the Department of Public Safety for record in computerized format shall not exceed the direct cost of making the copy unless a separate fee is established by law. 51 O.S. § 24A.5.3.

2. Particular fee specifications or provisions

If the request is solely for commercial purposes or would clearly cause excessive disruption to the public body's essential functions, then the public body may recover the direct cost of any document search. 51 O.S.§ 24A.5.3. See Transportation Information Services Inc. v. Oklahoma Dep't of Corrections, 1998 OK 108, 970 P.2d 166 (Agency may charge reasonable fee to cover costs to write and test necessary software and to gather specific information requested). A public body may recover search fees for: "(1) the storage media used, including disk, tape, or other format unless provided by the requestor; (2) any access or processing charges imposed upon the public body because of the request; (3) any hardware or software specifically required to fulfill the request and reproduce the record in computer-readable format which would not otherwise generally be required or used by the public body; and (4) the cost of labor directly attributable to fulfilling the request." 2005 OK AG 21.

"Notwithstanding any state or local provision to the contrary" a public body may recover only the reasonable, direct costs of copying and in no instance shall the cost be more than 25 cents per page for documents less than 8 1/2 x 14 inches or a maximum of one dollar for a certified copy. However, if the request is made solely for a commercial purpose or would cause excessive disruption in gathering the documents, then the public body can charge a reasonable fee to recover the direct cost of the document search. 51 O.S. § 24A.5.3. This provision has been held not to apply to court records, court clerks may charge one dollar for copying the first page of a document and 50 cents for each subsequent page. 2009 OK AG 27. Obtaining public documents for publication in a newspaper or broadcast by news media is not considered a commercial purpose. 51 O.S. § 24A.5.3.

A public body may not charge a per page fee for electronic records kept in a computer-readable format. 2005 OK AG 21. Further public bodies may not charge a fee when requesters are using their own copying equipment. 2006 OK AG 35. If a public body does not keep a record in electronic format, the public body may convert the record into a requested public format and may charge a reasonable fee, including the cost of converting the document into the requested format.2012 OK AG 22.However, an agency may not charge a copying fee if the persons uses his or her personal copying device.2006 OK AG 35.In such cases, the public body may place restrictions on copying which are necessary to protect the integrity ad organization its records.2006 OK AG 35.

3. Provisions for fee waivers

No search fee can be charged for the release of documents in the public interest. Public interest includes release to the news media, scholars, authors and taxpayers seeking to determine whether those entrusted with the affairs of the government are honestly, faithfully, and competently performing their duties as public servants. 51 O.S. § 24A.5.3.See also 1988 OK AG 35 (news media may not be charge search fee when acting in public interest).However, a public interest request is not absolutely exempt from search fees if the request results in a substantial disruption of the agency's day-to-day operations. McVarish v. New Horizons Community Counseling and Mental Health Services Inc., 1995 OK CIV APP 145, 909 P.2d 155.

4. Requirements or prohibitions regarding advance payment

5. Have agencies imposed prohibitive fees to discourage requesters?

The setting of fees for the purpose of discouraging a request for information or as an obstacle to disclosure of requested information is a violation of the Act and the party may be civilly or criminally liable. 51 O.S. §§ 24A.5.3, 24A.17.A. However, prohibitive fees were such a problem that the Attorney General circulated a letter to all public bodies warning that some excessive fees have been charged and that a fee of no more than 25 cents per page should be assessed. The problem with excessive or non-uniform fees was addressed by the legislature when it established a cap on the cost per page. See Transportation Information Services, supra (fact that one state agency by statute may charge $15 per record for a similar request does not justify second state agency from providing similar records at cost).

6. Fees for electronic records

E. Who enforces the Act?

1. Attorney General's role

The Attorney General is not directly involved in criminal or civil enforcement of the Act. The Attorney General will issue opinions on specific questions concerning the application of the Acts. Once these opinions are issued, covered agencies must act consistent with the opinion.

G. Record-holder obligations

1. Search obligations

2. Proactive disclosure requirements

A public body that contracts with a private vendor to provide electronic access to and reproduction of the public body’s records over the world wide web is still required to provide access to its records for inspection and copying under the Act.2005 OK AG 3.

3. Records retention requirements

The Oklahoma Archives and Records Commission oversees the maintenance and disposition of records in the state government.67 O.S. § 305. Without a unanimous vote of the Commission, no record shall be destroyed that is lessthan five years old. 67 O.S. § 306.But, except as provided by law, no state record shall be destroyed unless it is deemed by the Commission that the record has no further administrative, legal, fiscal, research or historical value.67 O.S. § 210.The records management act applies to emails, text messages and other electronic communications connected with the transaction of public business.2001 OK AG 46.The records management act applies equally to the public officials public owned electronic devices and privately-owned electronic devices.2009 OK AG 12.

The records management act applies only to the state and not to political subdivisions of the state.67 O.S. § 305.But the Act does require that the political subdivisions establish their own record retention system. 67 O.S. § 207.Political subdivision are exempt from record management and are mandated to maintain a records management program which is similar to the state records management system.2001 OK AG 46.

4. Provisions for broad, vague, or burdensome requests

II. Exemptions and other legal limitations

A. Exemptions in the open records statute

1. Character of exemptions

Twenty specific exemptions are recognized within the Act. 51 O.S. §§ 24A.7 through 24A.30. The public body claiming an exemption has the burden of establishing the applicability of the exemption.Citizens Against Taxpayer Abuse, Inc. v. City of Oklahoma City, 2003 OK 65.

All the exemptions are discretionary. A public body or public official is not civilly liable for damages for providing access to records. 51 O.S. § 24A.17.D.

The Oklahoma Open Records Act bears little resemblance, if any, to the federal Freedom of Information Act. Most importantly, it does not contain a corresponding Privacy Act. See discussion in Foreword concerning the privacy interests recognized under the Act.

2. Discussion of each exemption

a. Personnel records. May be kept confidential if they relate to internal personnel investigations or where disclosure would constitute a clearly unwarranted invasion of the personal privacy of the employee. Also, any college transcripts contained in the files are confidential except as to the degree obtained and the curriculum on the transcripts of certified public employees. The home address, telephone number and Social Security number of any current or former employee shall be kept confidential. 51 O.S. § 24A.7. See also 1999 OK AG 30. The Attorney General determined that a public body has the discretion to determine whether disclosing a personnel record indicating the date of birth of an employee is an unwarranted invasion of personal privacy. 2009 OK AG 3. However, the Supreme Court has held that release of birth dates and employee identification number of state employees would constitute a clearly unwarranted invasion of personal privacy.Okla. Public Employees Assoc. v. State ex rel Okla. Office of Personnel Management, 2011 OK 68. Further, the public body may keep confidential records indicating the name of an employee who has been placed on administrative leave with pay if the action is neither a “final” or “disciplinary” action. 2009 OK AG 3.

b. Law enforcement records. May be kept confidential if they do not fit into the ten specific categories of records to be made available for public inspection or if they are not made open by other state or local laws. 51 O.S. § 24A.8(A)(1)-(10).Access to the records may be denied unless the Court finds a public interest or individual interest outweighs the reason for denial. 51 O.S. § 24A.8.A-D. Registration maintained by the Department of Corrections pursuant to the Sex Offenders' Registration Act are open to public inspection. 51 O.S. § 24A.8.E. See also 57 O.S. § 584 E-F. Records in law enforcement officials are confidential except as specifically made public by statute. 51 O.S. § 24A.8.F-G.

c. Personal notes. Notes prepared as an aid to memory or research leading to adoption or implementation of a public act may be kept confidential prior to the time the action is taken. However, if the materials are part of a departmental budget request the exemption does not apply. 51 O.S. § 24A.9.

d. Bids, appraisals, etc. Bid specifications, contents of sealed bids, computer programs, appraisals of real estate and prospective locations of private business or industry may be kept confidential if disclosure would give an unfair advantage to competitors or bidders. This does not include records which would otherwise be open to inspection such as applications for permits or licenses. 51 O.S. § 24A.10.A-B. The Oklahoma Department of Commerce, the Oklahoma Department of Career and Technology Education, the technology center school districts, the Oklahoma Film and Music and institutions within the Higher Education system may keep much of its activities confidential. 51 O.S. § 24.A.10.C. A public body that performs billing or collection services for a utility regulated by the Corporation Commission may keep confidential any customer or individual payment data obtained or created by the public body. 51 O.S. § 24A.10.D.

e. Market research and marketing plans.The Oklahoma Medical Center may keep confidential certain market research and marketing plans if disclosure would give an unfair advantage to competitors of the center. 51 O.S. § 24A.10.a.

f. Library archive or museum materials. Donated materials may be kept confidential if the donor has imposed limitations. The identity of the individual may be kept secret if anonymity is a condition of the donation. See also 2002 OK AG 27. However, if a tax deduction is claimed with the donation, the public body must make available the date of the donation, the appraised value claimed for the donation for tax purposes and a general discussion of the materials donated. 51 O.S. § 24A.11.

g. Litigation and investigatory files. The Attorney General, District Attorneys and Municipal Attorneys may keep litigation files confidential. 51 O.S. § 24A.12. A district attorney may keep confidential records contained in litigation files. 1999 OK AG 58. However, access to a document that would otherwise be available for inspection and copying cannot be denied because a public official or agency has taken possession of the document and placed it in a litigation file.51 O.S. § 24A.20.

h. Federal records. Records coming into possession of a public body either from a federal agency or as a result of federal legislation may be kept confidential to the extent required under federal law. 51 O.S. § 24A.13. Nursing registry information required to be compiled by federal law is exempt from disclosure under the Act. 2001 OK AG 7.

i. Communications Received by Public Official. Personal communications made to a public official by a person exercising a state or federal constitutional right may be kept confidential except that the public official must acknowledge receipt of the communication and whether the communication is or is not a complaint. The rights secured relate only to those associated with the government’s power to redress grievances.1988 OK AG 86.Any official response may be kept confidential only to the extent necessary to protect the individual's identity. 51 O.S. § 24A.14.Further, records created by a public body after receipt of the complaint must be open to the public for review with the public body taking whatever steps are necessary to protect the identity of the complainant.Bd. of Med. Licensure v. Miglaccio, 1996 OK CIV APP 37. The Attorney General has also determined that a written request for the issuance of a formal written Attorney General Opinion made by a member of the Legislature or another public official is a record under the Act and must be made available upon request.2015 OK AG 3.

j. Crop and livestock reports. Reports provided by farmers, ranchers and agribusinesses to the Division of Agricultural Statistics may be kept confidential to the extent the report identifies the individual. 51 O.S. § 24A.15.

k. Educational records and materials. Such records may be kept confidential to the extent that the documents are individual student records, teacher lesson plans, tests and other material, and personal communications about the individual students. Statistical information which does not identify a particular student and directory information must be made available. Directory information may be withheld if the parent of the individual student notifies the school that the information should not be released. 51 O.S. § 24A.16.

l. Donor Information. Oklahoma State System of Higher Education may keep confidential all information pertaining to donors and prospective donors to or for the benefit of its institutions or agencies. 51 O.S. § 24A.16a.

m. Research Records. Information related to research done by a public body may be kept confidential when the disclosure of such information may affect the proprietary rights the public entity may have in the research and results of such research. 51 O.S. § 24A.19.

n. Public Utilities. Corporation Commission, and all entities regulated by the Commission, shall keep confidential those records of a public utility, its affiliates, suppliers and customers which are determined to be confidential books and records or trade secrets. 51 O.S. § 24A.22.

o. Department of Wildlife Conservation. The Department shall keep confidential the information provided by persons, including the name and address of the person, applying for or holding any permit or license issued by the Department, to the extent the information individually identifies the person. This does not apply to information provided by persons applying for or holding a commercial hunting or fishing license. 51 O.S. § 24A.23.A.The Department shall also disclose online or in published listings the antler description of each deer harvested and the name of the hunter who harvested the deer unless the hunter elects to not have his named released.51 O.S. § 24A.23.D.

p. Office of Juvenile System Oversight. The Office may keep its investigatory records and notes confidential, unless ordered by a court of competent jurisdiction to disclose the information. 51 O.S. § 24A.24.

r. Vulnerability assessments of critical assets. State environmental agencies or public utilities may keep confidential vulnerability assessments of critical assets in both water and wastewater systems. 51 O.S. § 24.A.27.

s. Act or Threat of Terrorism. When enacted in 2003, the threat of terrorism act made confidential all information relating to the investigation, deterrence, prevention or protection from an act or threat of terrorism including informational technology related to same. 51 O.S. § 24A.28. In 2013, the Legislature added to the exclusion records received, maintained and generated by the Department of Environmental Quality that contained information regarding sources of radiation in quantities deemed significant to public health and safety.51 O.S. § 24A.28.A.9.In 2015, the Legislature authorized that the names of school district personnel who have designated to a carry firearm in the school be kept confidential.25 O.S. § 24A.28.A.10.

t. Protective Orders. Protective orders directing the withholding or removal of pleadings or other materials from a public record may only be issued after a court has determined it is necessary in the interests of Justice. 51 O.S. § 24.A.29. The Oklahoma Supreme Court has stated that there are no provisions in the Open Records Act that allow parties to simply agree to seal a public record and submit a summary agreed order to the court.Shadid v. Hammond, 2013 OK 103.See alsoOber v. State ex rel. Dep't of Public Safety, 2016 OK CIV APP 2(Appellate Court reversed a trial court’s issuance of a protective order that sealed the entire record and prevented public access and knowledge of a teacher convicted for driving under the influence and revocation of the teacher’s driver’s license).

B. Other statutory exclusions

There are approximately 150 specific statutes which make defined documents confidential. “The burden to establish a privilege of confidentiality rests upon the person or entity that seeks to establish it.”1995 OK AG 97.

C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

Governor’s Qualified Privilege.The Oklahoma Supreme Court has held that the state Constitution recognizes an executive privilege to protect confidential advice from senior executive branch officials for use in the Governor’s deliberations and decision-making process.The Supreme Court upheld the lower court decision that the privilege could be found in the common law but proceeded to hold that the privilege was also found in the separation of powers clause in the Constitution.Vandelay Entertainment, LLC d.b.a. the Lost Ogle v. Fallin, 2014 OK 109.

Video Recording of Arrest.The Oklahoma Court of Civil Appeals held that a law enforcement agency’s dash cam video recording of an arrest is a record under the Act.Ward & Lee, P.L.C. v. City of Claremore, 2014 OK CIV APP 1.The Oklahoma Supreme Court held that, when a video is a record of the facts leading up to an arrest, the video must be made available to the public. Oklahoma Association of Broadcasters v. City of Norman, 2016 OK 119

Traffic Collision Reports. The Oklahoma Supreme Court has held that traffic collision reports do not fall within the specific categories enumerated under law enforcement records and thus are not public records under the Act. Cummings & Associates v. City of Oklahoma City, 1993 OK 36, 849 P.2d 1087.

Insurance Commission Records. The Oklahoma Supreme Court has held that records of a private insurance company which came into possession of the state Insurance Commissioner under a court-ordered receivership are not public records and thus do not have to be disclosed under the Act. Farrimond v. Fisher, 2000 OK 52, 8 P.3d 872.

Tape Recordings of Hearings. Tape recordings of Implied Consent Hearings before the Department of Public Safety are records under both the Open Records Act and the Records Management Act [67 O.S. O.S.§ 203(a)] and copies must be provided for inspection. Fabian & Associates, P.C. v. State ex. rel Dep't of Public Safety, 2004 OK 67, 100 P.3d 703.

Draft Audit Report. In finding that a “draft” audit report of a city was a record to be produced under the Open Records Act, the Oklahoma Court of Civil Appeals held that whether a document is a record depends upon “‘the totality of the circumstances surrounding the creation, maintenance, and use of the document,’ regardless of the ‘status’ of a document as ‘preliminary’ or ‘final’”. Intn’l. Union of Police Associations v. City of Lawton, 2009 OK CIV APP 85.

Traffic Collision Reports. The Oklahoma Supreme Court has held that traffic collision reports do not fall within the specific categories enumerated under law enforcement records and thus are not public records under the Act. Cummings & Associates v. City of Oklahoma City, 1993 OK 36, 849 P.2d 1087.

Insurance Commission Records. The Oklahoma Supreme Court has held that records of a private insurance company which came into possession of the state Insurance Commissioner under a court-ordered receivership are not public records and thus do not have to be disclosed under the Act. Farrimond v. Fisher, 2000 OK 52, 8 P.3d 872.

Tape Recordings of Hearings. Tape recordings of Implied Consent Hearings before the Department of Public Safety are records under both the Open Records Act and the Records Management Act [67 O.S. O.S.§ 203(a)] and copies must be provided for inspection. Fabian & Associates, P.C. v. State ex. rel Dep't of Public Safety, 2004 OK 67, 100 P.3d 703.

Draft Audit Report. In finding that a “draft” audit report of a city was a record to be produced under the Open Records Act, the Oklahoma Court of Civil Appeals held that whether a document is a record depends upon “‘the totality of the circumstances surrounding the creation, maintenance, and use of the document,’ regardless of the ‘status’ of a document as ‘preliminary’ or ‘final’”. Intn’l. Union of Police Associations v. City of Lawton, 2009 OK CIV APP 85.

D. Protective orders and government agreements to keep records confidential

E. Interaction between federal and state law

1. HIPAA

2. DPPA

3. FERPA

4. Other

F. Segregability requirements

G. Agency obligation to identify basis of redaction or withholding

III. Record categories - open or closed

A. Autopsy and coroners reports

A copy of the full and complete autopsy report, together with the findings of the person making the report, shall be withheld from public inspection and copying for ten business days following the date the report is generated by the Office of the Chief Medical Examiner.63 O.S. § 945.D.The release of the autopsy report may be further delayed ifal law enforcement agency declares that the report contains information that would materially compromise an ongoing criminal investigation. 63 O.S. § 945.G.Following the filing of the declaration, the law enforcement agency must file a request for an extension of time with a district court for hearing.Id.

At the same time the autopsy report is completed, the medical examiner must also provide a summary report of the investigation.63 O.S. § 945.E.The summary report is a public record.Id.

A public body may keep personnel records confidential which relate to internal personnel investigations including examination and selection material for demotion, discipline or resignation. 51 O.S. § 24A.7.A.1. The Oklahoma Attorney General has opined that the name of an employee who has been placed on administrative leave with pay may be kept confidential if the action constitutes neither a final or disciplinary action nor a “final disciplinary action resulting in loss of pay, suspension, demotion of position or termination.” 2009 OK AG 33.

A public body must make available records relating to a final disciplinary action resulting in loss of pay, suspension, demotion of position or termination. 51 O.S. § 24A.7.B.4. See also 2009 OK AG 33.

C. Bank records

The State Banking Department is prohibited from disclosing records except those designated as public records which include applications for bank charters, records introduced at public hearings on applications, information disclosing the failure of a bank, reports of completed investigation into bank fund shortages, names of bank stockholders and officers filed with the Secretary of State and regular financial call reports. Other records may be divulged by the Commissioner after receipt of a written request. 6 O.S. § 208. The same level of confidentiality applies to credit union records which are kept by the State Banking Department. 6 O.S. § 2027. Banks are not public bodies under the ORA and are therefore not subject to its disclosure requirements, 2001 OK AG 29.

D. Budgets

The Open Records Act provides that ever public body or public official has a duty to maintain records on the receipt and expenditure of any public funds. 51 O.S. § 24A.4. Public officials may keep confidential personal notes and personally created materials “other than departmental budget requests.” 51 O.S. § 24A.9.

E. Business records, financial data, trade secrets

Trade secrets in books and papers held by a person who collects premiums for insurance companies for a trust, including the identities and addresses of policyholders and certificate holders, are confidential. 36 O.S. § 1443.E. Any public body may keep confidential research information if the disclosure of the information could affect the ability to patent or copyright the research or have any other effect on a proprietary right an entity might have in the research. 51 O.S. § 24A.19. Any information submitted or compiled by the Oklahoma Development and Finance Authority concerning marketing plans, trade secrets, financial statements or any other commercially sensitive information is confidential. 74 O.S. § 5062.6. Any information submitted to or compiled by the Oklahoma Center for the Advancement of Science and Technology concerning marketing plans, trade secrets, research concepts, financial statements, or any other proprietary information is confidential. 74 O.S. § 5060.7. The Corporation Commission may keep confidential information concerning public utility trade secrets. 51 O.S. § 24A.22. In finding that a “draft” audit report of a city was a record to be produced under the Open Records Act, the Oklahoma Court of Civil Appeals held that whether a document is a record depends upon “‘the totality of the circumstances surrounding the creation, maintenance, and use of the document,’ regardless of the ‘status’ of a document as ‘preliminary’ or ‘final’”. Int'l. Union of Police Assoc'ns v. City of Lawton, 2009 OK CIV APP 85.

F. Contracts, proposals and bids

Confidential to the extent that disclosure would give an unfair advantage to competitors or bidders. 51 O.S. § 24A.10. Taped conversations made in connection with the bidding process between the State Treasurer and outside securities firms are subject to the Act. 1993 OK AG 2.

G. Collective bargaining records

H. Economic development records

The Oklahoma Capital Formation Board must keep confidential marketing plans, financial statements, trade secrets, research concepts, methods or products, or any other proprietary information of entities with which it is dealing.74 O.S. § 5085.6(C).Absent a specific exemption under the Act, records such as information of the name of the entity receiving assistance, the amount of investment or credit insurance the Board has at risk in the venture and the returns from investments or credit insurance are subject to disclosure under the Act. 2012 OK AG 1.

I. Election Records

Voter registration records may be obtained on CD from the Oklahoma State Election Board. A fee schedule ranges from $10 for a precinct to $150 for statewide. The state election board may promulgate rules to keep confidentialthe residence and mailing address of voters who are members of certain classes, includingjudges, district attorneys, persons protected by victim’s protection orders, etc.26 O.S. § 4-115.2.

While there is no specific provision in the Open Records Act addressing election materials, the Oklahoma Supreme Court has determined that state statutes distinguish between “record” and “ballot” and a “ballot” is not a business record of the Election Board subject to disclosure under the Act. Milton v. Hayes, 1989 OK 12, 770 P.2d 14. The Court further held that should the ballot be a record, it would fall under the exception in the Act which requires a public body to keep confidential records that are not discoverable under state law. The ballot is deemed confidential.

J. Emergency Medical Services records

K. Gun permits

The Oklahoma State Bureau of Investigation maintains a list of all persons issued a handgun licenses issued under the Oklahoma Self-Defense Actbut the list is available only to law enforcement agencies.21 O.S. § 1290.13

L. Homeland security and anti-terrorism measures

The Governor's Security and Preparedness Executive Panel, created pursuant to an Executive Order, is not subject to the Act because the panel is not a public body under the Act and documents created by the panel are therefore not public records. However, materials coming into the possession of any public official sitting on the panel may be a record under the Act. 2002 OK AG 5. Any state environmental agency or public utility shall keep confidential vulnerability assessments of critical assets in both water and wastewater systems. 51 O.S. § 24A.27. Information relating to the investigation, deterrence, prevention or protection from an act or threat of terrorism shall be confidential as well as informational technology related to some. 51 O.S. § 24A.28. Also, records received, maintained or generated by the Oklahoma Office of Homeland Security which include confidential information and records received by the Oklahoma Office of Homeland Security from the United States Department of Homeland Security are confidential. Id.. In 2013, the Legislature added to the exclusion records received, maintained and generated by the Department of Environmental Quality that contained information regarding sources of radiation in quantities deemed significant to public health and safety.51 O.S. § 24A.28.A.9

M. Hospital reports

Information received by the State Commissioner of Health through inspection or otherwise on hospitals is confidential and not to be disclosed publicly. 63 O.S., § 1-709. Medical records and communications between a physician or psychotherapist and mental patients are privileged and confidential. 43 O.S., § 1-109.

N. Personnel records

1. Salary

2. Disciplinary records

A record reflecting the final disciplinary action resulting in loss of pay, suspension, demotion of position, or termination is a public record. 51 O.S. § 24A.7.B.4. The Oklahoma Attorney General has determined that “a public body may keep confidential a record indicating the name of an employee who has been placed on administrative leave with pay if, under the personnel policies of the public body, the action constitutes neither a "final" or "disciplinary" action, nor a "final disciplinary action resulting in loss of pay, suspension, demotion of position, or termination."” 2009 OK AG 33. The Attorney General has also stated that “a licensing board’s disciplinary files, subject to limited exceptions, are treated as public records.”2017 OK AG 12, ¶ 7.

3. Applications

4. Personally identifying information

Public bodies shall keep confidential the home address, telephone numbers and social security numbers of any person employed or formerly employed by the public body. 51 O.S. § 24A.7.D. The Oklahoma Attorney General issued an opinion that greatly expanded the definition of personally identifying information, holding that a “public body has discretion to determine that disclosing a personnel record indicating the date of birth of an employee of the public body is an "unwarranted invasion of [the] personal privacy" of the employee under the Open Records Act. In making such a determination, the public body must weigh the employee's interest in nondisclosure against the public's interest in disclosing the record. If the public body determines that the employee's interest in nondisclosure is greater, it may keep the birth date confidential and disclose the remainder of the personnel record.” 2009 OK AG 33.However, the Supreme Court has held that release of birth dates and employee identification number of state employees would constitute a clearly unwarranted invasion of personal privacy.Okla. Public Employees Assoc. v. State ex rel Okla. Office of Personnel Management, 2011 OK 68.

5. Expense reports

Every public body and public official has a specific duty to keep and maintain complete records of receipt and expenditure of public funds. 51 O.S. § 24.A.4. The Oklahoma Attorney General has determined the statute requires the state legislature and its employees to make records of expense reimbursements available under the Open Records Act. 2008 OK AG 19.

6. Evaluations/performance reviews

7. Complaints filed against employees

8. Other

O. Police records

1. Accident reports

While not specifically addressed in the Open Records Act, Oklahoma statutes provide that accident reports shall be kept confidential for a period of 60 days after the collision but are to “be made available as soon as practicable upon request” to newspapers, broadcasters, and other parties with interest in the collision report. 47 O.S. § 40.102.A.2.j-k.

2. Police blotter

3. 911 tapes

4. Investigatory records

The Attorney General, district attorneys and municipal attorneys may keep their litigation files and investigatory reports confidential. 51 O.S. § 24A.12.However, access to a document that would be available for inspection and copying under the Act cannot be denied because the public agency has placed it in an investigation file.51 O.S. § 24A.20.Although not specifically addressed in the Act, all investigation files of the Oklahoma State Bureau of Investigation are closed to the public.74 O.S. § 150.5(D)(1).

5. Arrest records

Arrest records are available for public inspection and copying. 51 O.S. § 24A.8.A. The Oklahoma Supreme Court found that recordings of a Department of Public Safety administrative hearing on driver’s license revocations are public because they contain facts concerning an arrest.Fabian & Associates, P.C. v. State ex rel. Dep’t of Pub. Safety, 2004 OK 67.The Oklahoma Court of Civil Appeals held that a law enforcement agency’s dash cam video recording of an arrest is a record under the Act.Ward & Lee, P.L.C. v. City of Claremore, 2014 OK CIV APP 1.After law enforcement agencies continued to question these rulings, especially in light of the proliferation of body cameras, the legislature amended 51 O.S. § 24A.8 to provide that audio and video recordings attached to law enforcement vehicles (24A.8.A.9) and to law enforcement personnel (24A.8.A.10) were public records under the Act.Finally, the Oklahoma Supreme Court held that a surveillance video depicting the actions that lead to the probable cause affidavit in support of the issuance of an arrest warrant is a public record under the Act. Oklahoma Association of Broadcasters v. City of Norman, 2016 OK 119.

6. Compilations of criminal histories

While there is no statutory or case law addressing this issue, an Oklahoma Attorney General opinion stated that neither a district attorney nor a police department must make available any record which includes a list of all charges contained in an information.1999 OK AG 58.

10. Police techniques

11. Mugshots

Mug shots are a physical description of an arrestee and therefore a law enforcement record under the Act.Further, law enforcement agencies must provide electronic copies of the mug shots if it keeps mug shots in electronic format and the requestor specifically requests the mug shots in electronic format.2012 OK 22.

16. Arrest/search warrants and supporting affidavits

17. Physical evidence

P. Prison, parole and probation reports

Q. Professional licensing records

Oklahoma has numerous licensing boards.Under the Oklahoma Open Records Act, the records of all boards are public.The Oklahoma Court of Civil Appeals has held that the Board of Medical Licensure is a public body subject to the Open Records Act.Bd. of Medical Licensure v. Miglaccio, 1996 OK CIV APP 37.The Attorney General has also stated that “a licensing board’s disciplinary files, subject to limited exceptions, are treated as public records.”2017 OK AG 12, ¶ 7.

R. Public utility records

The amount of money spent by a public service corporation to secure rights-of-way, to engage in construction or to reconstruct existing facilities is a matter of public record. Okla. Const. Art. 9, § 29. Although they must provide public access to their records, including records of the name, address, rate paid for services, charges, and payment for each customer, public bodies that provide utility services to the public may keep confidential credit information, credit card numbers, telephone numbers, and bank account information for individual customers. 51 O.S. § 24A.9.D. The Corporation Commission shall keep confidential those records of a public utility, its affiliates, suppliers and customers which the Commission determines are confidential books, records, or trade secrets. 51 O.S. § 24A.22. A public body that performs billing or collection services for a utility regulated by the Corporation Commission may keep confidential any customer or individual payment data obtained or created by the public body. 51 O.S. § 24.A.10.D.

S. Real estate appraisals, negotiations

1. Appraisals

A public body may keep confidential records relating to appraisals for the sale or acquisition of real estate if disclosure would give an unfair advantage to competitors or bidders. 51 O.S. § 24A.10.B.5. The records would be available for public inspection after the sale or acquisition is completed.

5. Zoning records

T. School and university records

1. Athletic records

2. Trustee records

3. Student records

If kept, statistical information not identified with a particular student and directory information shall be open for inspection and copying. "Directory information" includes a student's name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and the most recent previous educational institution attended by the student. Any educational agency or institution making public directory information shall give public notice of the categories of information which it has designated as directory information with respect to each student attending the institution or agency and shall allow a reasonable period of time after the notice has been given for a parent to inform the institution or agency that any or all of the information designated should not be released without prior consent of the parent or guardian or the student if the student is eighteen (18) years of age or older. 51 O.S. 24A.16.B

4. School foundation/fundraising/donor records

5. Research material or publications

6. Other

U. State guard records

There has been no case law or opinions issued dealing with the status of state guard records.The Oklahoma Attorney General has stated thatthe Oklahoma National Guard is within the Oklahoma Military Department which is an agency of the of Oklahoma.2008 OK AG 21.In the same opinion, the Attorney General found that the Oklahoma National Guard was a state law enforcement agency for purposes of sharing in the proceeds of federal drug-related property forfeitures.Id. As an agency of the state, the Oklahoma Military Department must assert any exemption it has to not release records.

V. Tax records

The records and files of the Oklahoma Tax Commission are confidential and the Tax Commission is prohibited from disclosing any information contained in its files relating to income tax or to any other taxes. 68 O.S. § 205.

W. Vital Statistics

1. Birth certificates

A birth certificate is deemed confidential and may not be disclosed. 63 O.S. § 1-323(A). See 2009 OK AG 33 (“vital statistics record such as a birth certificate, and the information contained therein, that is part of the Department of Health's vital statistics system is confidential”).

3. Death certificates

4. Infectious disease and health epidemics

The individual forms, computer tapes, or other forms of data collected by and furnished to the Division of Health Care Information or to a data processor pursuant to the Oklahoma Health Care Information System Act shall be confidential and shall not be public records as defined in the Open Records Act. 63 O.S. § 1-120.

IV. Procedure for obtaining records

A. How to start

1. Who receives a request?

2. Does the law cover oral requests?

The law defines neither written nor oral requests. The Oklahoma Court of Appeals states the Open Records Act contains no provision for dictating the manner in which to make a request for inspection of a record. Intn’l. Union of Police Associations v. City of Lawton, 2009 OK CIV APP 85 ¶ 14. The public body is compelled to provide prompt reasonable access to the records upon request. 25 O.S. § 24A.5.5. See In the Matter of the Petition of University Hospitals Authority, 1997 OK 162, 953 P.2d 314 (Contract made available to the public two days before consideration in an open meeting was timely when the record was provided as soon as it came into existence).

The requester should make the same request in writing.

The written request should direct the public body to state the specific statute it is relying upon to deny access to the record.

3. Required contents of a written request

4. Can the requester choose a format for receiving records?

5. Availability of expedited processing

B. How long to wait

The Act states that a public body must provide prompt, reasonable access to its records.51 O.S. § 24A.5.5.The Act does not address specific time limits. It is therefore advisable that a time for the response be included with the written request.

2. Ombudsperson

3. Other

E. Court action

1. Who may sue?

2. Priority

3. Pro se

While it is possible to proceed pro se, the Act does allow for the recovery of reasonable attorney fees if successful. Because the Act allows a cause of action for injunctive and declaratory relief, both requiring specialized pleading, it would be advisable to use an attorney and seek recovery of the fees.

2. Time limits for filing appeals

3. Contact of interested amici

Amicus briefs may be filed by consent of the parties or by leave of the Chief Justice of the Supreme Court. The amicus curiae must file a statement not exceeding five pages disclosing the nature of the interest, the factual or legal questions which are not adequately addressed by the litigants and the relevancy of the factual or legal questions to the disposition of the case. Upon a showing of extraordinary circumstances, the amicus curiae may be allowed to participate in oral arguments. 12 O.S.Ch. 15, App. 2, Rule 1.28a.

The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state's highest court.

G. Addressing government suits against disclosure

Open Meetings

I. Statute - basic application

A. Who may attend?

B. What governments are subject to the law?

1. State

All boards, bureaus, commissions, agencies, etc. of the state except the state judiciary, state legislature and administrative staff of public bodies, when the administrative staff is not meeting with the public body, are covered. 25 O.S. § 304.1.

3. Local or municipal

C. What bodies are covered by the law?

1. Executive branch agencies

All state agencies supported in whole or in part by public funds, or entrusted with the expending of public funds, or administering public property, are public bodies under the act except administrative staffs of public bodies, when administrative staffs are not meeting with the public body. 25 O.S. § 304.1. Any meeting between the Governor and a majority of members of any public body is open to the public. 25 O.S. § 308.

Administrative staffs of public bodies, including faculty meetings and athletic staff meetings of institutions of higher education, are not covered by the Act.

a. What officials are covered?

The Act does not apply to "officials" but rather to "public bodies." However, under the Open Records Act, "public official" means" any official or employee of any public body." 51 O.S. § 24A.3(4). The Governor's Security and Preparedness Executive Panel, a majority of its members being public officials, has been found to not be subject to the Open Meetings Act. See 2002 OK AG 5. "[T]he mere presence on the panel of people who may be public officials in other facets of government does not in and of itself render the panel a public body." Id.

b. Are certain executive functions covered?

c. Are only certain agencies subject to the act?

All "agencies" are covered under the Act. 25 O.S. § 304(1). Agencies are determined in 74 O.S. § 3301 as "any board, commission, department, authority, bureau, office or other entity created with authority to make rules or formulate orders as defined in the Administrative Procedures Act."

2. Legislative bodies

The state legislature is exempt from the definition of public body for purposes of the act. 25 O.S. § 304.1. Open meetings of the legislature are conducted in accordance with rules adopted by each house thereof. 25 O.S. § 309. County and local legislative and governing bodies are covered by the act. 25 O.S. § 304.1.

3. Courts

The state judiciary is exempt under the definition of public body for purposes of the Act. 25 O.S. § 304.1. Further, the Council on Judicial Complaints is exempt when conducting, discussing or deliberating any matter relating to a complaint received or filed with the Council. Id. Bar disciplining proceedings are not subject to the Act. State ex rel. Oklahoma Bar Ass'n v. Mintor 2001 OK 69, 37 P.3d 763.

4. Nongovernmental bodies receiving public funds or benefits

All boards, bureaus, commissions, agencies, trusteeships, authorities, councils, committees, public trusts, or any entity created by a public trust, task forces or study groups in the State of Oklahoma supported in whole or in part by public funds, or entrusted with the expending of public funds, or administering public property are public bodies for purposes of the Act. 25 O.S. § 304.1. The term “public body” is broad enough to cover non-profit entities or trade associations if the private entity meets the definitional requirements of the Act.2017OK AG 18. Thus, the non-profit Oklahoma Sheriff’s Association was found to be a public body when performing tasks that were supported in whole or in party by public funds.Id.Private organizations are subject to the Act if (1) they do not submit itemized invoices for goods or services provided and instead receive a direct allocation of public funds from tax or other revenues or (2) there is no quid pro quo between the amount of goods, and services provided and the funds received, i.e. the organization receives funds regardless of whether they provide goods and services. 2002 OK AG 37.

If the body is supported in whole or in part by public funds or entrusted with the expending of public funds, or administering public property, then it is covered under the Act. 25 O.S. § 304.1. If a majority of the public body sits as members of the non-governmental group, and the non-governmental body makes recommendations to the public body, then the non-governmental group would also be covered under the Act. 25 O.S. § 306; see also 1982 OK AG 212.

6. Multi-state or regional bodies

If a body is supported by public funds or has actual or de facto decision-making authority to bind a governmental body, then a multistate or regional body is subject to the Act. 1981 OK AG 311. An entity that is formed by multiple counties pursuant to statutory authorization and performs a delegated function, such as self-insurance, that would otherwise be done by the individual counties and that receives funding from such county governments is subject to the Act. 1999 OK AG 37.

7. Advisory boards and commissions, quasi-governmental entities

Public body for purposes of the Act "shall" include all committees or subcommittees of any public body, except that meetings conducted by Stewards of the Oklahoma Horse Racing Commission are not covered when they are officiating at races or otherwise enforcing rules of the Commission. 25 O.S. § 304.1. However, the Oklahoma Supreme Court has disregarded this legislative mandate, and held that not all committees and subcommittees of any public body are covered under the Act. If the subordinate entity exercises actual or de facto decision-making authority, then it must comply with the Act. International Ass'n of Firefighters, Local 2479 v. Thorpe, 1981 OK 95, 632 P.2d 408; Sanders v. Benton, 1978 OK 53, 579 P.2d 815. If the subordinate entity has a purely recommendatory, informational, fact-finding or advisory purpose with no decision-making authority, then it is not subject to the Act. Andrews v. Indep. School Dist. No. 29 of Cleveland County, 1987 OK 40, 737 P.2d 929. The Oklahoma State Textbook Committee is a public body under the Act. 2002 OK AG 7.

8. Other bodies to which governmental or public functions are delegated

All boards, bureaus, commissions, agencies, trusteeships, authorities, councils, committees, public trusts, or any entity created by a public trust, including any committee or subcommittee composed of any of the members of a public trust or other legal entity receiving funds from the Rural Economic Action Plan Fund, task forces or study groups in the State of Oklahoma entrusted with the expenditure of public funds or administering public property are public bodies for purposes of this act. 25 O.S. § 304.1. The Grand River Dam Authority Lakes Advisory Commission is subject to the Act. 2002 OK AG 44. However, the Oklahoma Court of Civil Appeals has held that a not-for-profit insurance provider created by the Legislature was not a public body, even though four public officials constituted its Board of Managers.CompSource Okla. v. Nat’l Am. Ins. Co., 2012 OK CIV APP 22.

9. Appointed as well as elected bodies

If the body is supported in whole or in part by public funds or entrusted with the expending of public funds, or administering public property, then it is covered under the Act. 25 O.S. § 304.1. If a majority of the public body sits as members of the non-governmental group, and the non-governmental body makes recommendations to the public body, then the non-governmental group would also be covered under the Act. 25 O.S. § 306; see also 1982 OK AG 212. However, the body must meet the definition of Agency found elsewhere under state law or the appointed body may not be subject to the Act. See 2002 OK AG 5.

D. What constitutes a meeting subject to the law

1. Number that must be present

A meeting is the conducting of business of a public body by a majority of its members meeting together. 25 O.S. § 304.2. International Ass'n of Firefighters, supra (key consideration is the public nature of the work of the group). Rogers v. Excise Board of Greer County, 1984 OK 95, 701 P.2d 754 (meetings held on legal holidays in locked public buildings do not comply with the law). A meeting may also be held by videoconference when a public body has been granted such authority by the legislature. 25 O.S. §§ 304.2 and 304.7; 25 O.S. § 306.

a. Must a minimum number be present to constitute a "meeting"?

A majority is required. Id. See also Monkey Island Development Authority v. Paul Staten, 2003 OK CIV APP 64, 76 P.3d 84 (rejecting a claim that a meeting violated the Act, stating "Without a majority, there could be no ‘meeting’ under the Act and no violation").In a videoconference meeting, at least a quorum of the public body must be present at the posted meeting site.25 O.S. § 307.1(A)

b. What effect does absence of a quorum have?

2. Nature of business subject to the law

a. "Information gathering" and "fact-finding" sessions

Informal gatherings or fact-finding sessions are prohibited. 25 O.S. § 306.Informal gatherings among a majority of the members of a public body on any course of action or to vote on any matter is prohibited.In re Appeal of the Order Declaring Annexation Dated June 28, 1978, 1981 OK CIV APP 57, 637 P.2d 1270 (act covers not only formal meetings but entire decision-making process). “The legislative intent is unmistakable.25 O.S. § 306 is an absolute prohibition upon any attempt to circumvent the Open Meeting Act and obtain a consensus upon an item of business by informal meetings outside a public meeting.”1981 OK AG 69.

b. Deliberation toward decisions

The Act defines a meeting as the “conduct of business.”The Oklahoma Attorney general has opined that “conduct of business” includes the entire decision-making process including deliberation, decision or formal action.1982 OK AG 212.Later opinions concluded that “conduct of business”would include discussions in which the members of the public body are considering information that will aid them I their decision-making, even though those discussions do not necessarily effectively predetermine their official actions.2012 OK AG 24. When a majority of commissioners of the Corporation Commission are present at the same time in a hearing conducted by an administrative law judge, the hearing is subject to the Act because they are engaged in the conduct of business.Id.

3. Electronic meetings

Public bodies are authorized to hold meetings by videoconference provided that each member is visible and audible to each other and the public through a video monitor.25 O.S. § 307.A.1.No less than a quorum of the public body must be present at the posted meeting site.Id.

a. Conference calls and video/Internet conferencing

No electronic or telephonic communications, except for videoconferences specifically allowed in 25 O.S. § 307.1, among a majority of the members of a public body shall be used to decide any action or take any vote. 25 O.S. § 306.

b. E-mail

No electronic or telephonic communications, except for videoconferences specifically allowed in 25 O.S. § 307.1, among a majority of the members of a public body shall be used to decide any action or take any vote. 25 O.S. § 306.

c. Text messages

No electronic or telephonic communications, except for videoconferences specifically allowed in 25 O.S. § 307.1, among a majority of the members of a public body shall be used to decide any action or take any vote. 25 O.S. § 306.

d. Instant messaging

No electronic or telephonic communications, except for videoconferences specifically allowed in 25 O.S. § 307.1, among a majority of the members of a public body shall be used to decide any action or take any vote. 25 O.S. § 306.

e. Social media and online discussion boards

No electronic or telephonic communications, except for videoconferences specifically allowed in 25 O.S. § 307.1, among a majority of the members of a public body shall be used to decide any action or take any vote. 25 O.S. § 306.

E. Categories of meetings subject to the law

1. Regular meetings

a. Definition

b. Notice

All public bodies must give written notice by December 15th of the schedule showing the date, time and place of all regularly scheduled meetings of the public body for the next calendar year. 25 O.S. § 311.A.1. All state agencies must give notice to the Secretary of State; county agencies must give notice to the County Clerk; municipalities must give notice to the municipal clerk; and multicounty, regional, area wide or district public bodies must give notice to the county clerk where the body is located or where the public is served. Any change to the schedule must be given to the appropriate authorities (Secretary of State, county clerk or municipal clerk) as required under the law not less than ten (10) days prior to implementation of the change. 25 O.S. § 311.A.8.

Notices must be posted either in prominent public view at the principal office of the public body or at the location of the meeting if no public office exists at least 24 hours prior to the meeting excluding Saturdays, Sundays and legal holidays (25 O.S. § 311.A.9.a.) or on the public body’s internet website (25 O.S. § 311.A.9.b.).The Notice and Agenda must be visible before and after business hours. 1997 OK AG 98.Providing notice of a meeting by mail or by publishing in a local newspaper does not comply with the notice requirement of the Act.2012 OK AG 24.

When a meeting is being conducted by videoconference, the notice and agenda for the meeting must state the location, address and telephone number of each available videoconference site.25 O.S. § 307.1.A.2.a.The notice and agenda must also state the site from which each member of the public body will be present and participating in the meeting.25 O.S. § 307.1.A.2.b.The public is allowed to be in each room from which a public official participates in the videoconference.25 O.S. § 307.1.A.5.

The notice must contain all items to be considered at the public meeting. Any item not posted on the notice cannot be considered except that the public body may consider "new business" which is "any matter not known about or which could not have been reasonably foreseen prior to the time of posting." 25 O.S. § 311.A.10. See also1982 OK AG 114 (“A public body should not take up new business unless it has indicated that it would do so on the agenda for the meeting”).The agenda must be plainly worded so that a person of ordinary education and intelligence can comprehend. Hayworth Bd. of Education v. Havens, 1981 Okla. Civ. App. 56, 637 P.2d 902 (agenda item stating school board to interview new administrator held insufficient for board action of hiring administrator). In addition, if an executive session is proposed, the agenda must contain sufficient information for the public to ascertain that an executive session will be proposed, identify the items of business and purposes of the executive session, and state specifically the statutory authority for an executive session. 25 O.S. § 311.B.2.

The date, time and place of the public meeting. 25 O.S. § 311.A.1. Including the date, place and time without including an agenda of the meeting is insufficient notice. Hillary v. State, 1981 Okla. 78, 630 P.2d 791. A public body may not post notice of two separate meetings held in separate locations at the same time on the same day, as a majority may not be present in two places at the same time.2012 OK AG 24.

Language used by legislature in the public policy section of the act, together with the inclusion of a penal penalty, makes it a penal statute which must be strictly construed. State v. Patton, 1992 Okla. Crim. 57, 837 P.2d 483. All actions taken which are in willful violation of the Open Meetings Act are invalid. 25 O.S. § 313. Hayworth, supra (board hiring of superintendent without meeting agenda requirements invalidated); In re Appeal of the Order Declaring Annexation Dated June 28, 1978, supra (vote on annexation held without public body compliance with act held invalid); Okmulgee County Rural water Dist. No. 2 v. Beggs Public Works Authority, 2009 OK CIV APP 51, 211 P.3d 225 (Absent posted notices of its intent to consider the 2004 water contract, Beggs' execution and approval of the 2004 contract is invalid as "exceed[ing] the scope of action defined by the notice[s]."). Persons who willfully violate the provisions of the act are guilty of a misdemeanor and upon conviction can be fined $500 or imprisoned in county jail for one year, or both. 25 O.S. § 314. Hillary v. State, supra (defendant fined after being found guilty of violating the Open Meeting Act on three separate occasions when agendas for public meetings were not posted). See 2002 OK AG 07 (vote to add disclaimer to textbooks invalid because agenda did not contain sufficient notice to public that such disclaimer was to be discussed).

c. Minutes

The minutes of a public meeting must contain an official summary of the proceedings which shows the members absent and present, the matters considered and the actions taken. 25 O.S. § 312.A. The presence or absence of a public official must be recorded in the minutes in a manner that is easily understood and not deceptively vague or misleading.Andrews v. Indep. Sch. Dis. No. 29, 1987 OK 40; Wilson v. Tecumseh, 2008 OK CIV APP 84.All votes must also be publicly cast and recorded. 25 O.S. § 305.

Minutes are public records. 25 O.S. § 312.A. A court reporter’s transcript of a public meeting does not satisfy the minutes requirement of the Act.2012 OK AG 24.Further, any person attending a public meeting may record the meeting by videotape, audiotape, or other means provided such recording does not interfere with the conduct of the meeting. 25 O.S. § 312.C.

2. Special or emergency meetings

a. Definition

A special meeting of a public body is one that is not regularly scheduled or not an emergency. 25 O.S. § 304.4. An emergency meeting is one called when a situation involves injury to persons or injury and damage to public or personal property or immediate financial loss and the time requirements for public notice of a special meeting would make such procedure impractical and increase the likelihood of injury or damage or immediate financial loss. 25 O.S. § 304.5.

b. Notice requirements

For a special meeting, public notice must be given to the appropriate notifying authorities (Secretary of State, county clerk or municipal clerk) at least 48 hours prior to the meeting. In addition, the notice must be posted at least 24 hours prior to the meeting excluding Saturdays, Sundays and legal holidays. 25 O.S. § 311.A.9. For an emergency meeting, as much advance notice "as is reasonable and possible under the circumstances" must be given. 25 O.S. § 311.A.13. Weeks v. Northeast Oklahoma Area Vo-Tech School, 1982 OK CIV APP 16, 657 P.2d 1205 (emergency board meeting called to vote on non-renewal of teachers' contract justified when school system faced loss of $70,000 if vote not immediately taken).

For a special meeting, notice is given to the general public by displaying it prior to the meeting. Also, notice must be mailed or delivered to any person, newspaper, wire service, radio station, and television station at least 48 hours prior to the special meeting if a written request for such notice has been filed with the public body. A charge of up to $18 per year may be assessed against persons or entities who file such requests. 25 O.S. § 311.A.12. For an emergency meeting, as much notice as possible must be given to the public. 25 O.S. § 311.A.13.

For a special meeting, the notice must be posted in prominent view at the public body's principal office or, if no office exists, at the location of the meeting or by posting on the public body’s internet website. 25 O.S. § 311.A.12. For an emergency meeting, the notice must be given in person or by telephonic or electronic means. 25 O.S. § 311.A.13.

Only the specific matters listed on the posted agenda may be considered. 25 O.S. §§ 311.A.12, 311.A.13.

The notice must contain the date, time, place and agenda for the meeting. 25 O.S. §§ 311.A.12, 311.A.13.

Language used by legislature in the public policy section of the act, together with the inclusion of a penal penalty, makes it a penal statute which must be strictly construed. State v. Patton, supra. All actions taken which are in willful violation of the Open Meetings Act are invalid. 25 O.S. § 313. Hayworth, supra (board hiring of superintendent without meeting agenda requirements invalidated); In re Appeal of the Order Declaring Annexation Dated June 28, 1978, supra (vote on annexation held without public body compliance with act held invalid). Persons who willfully violate the provisions of the act are guilty of a misdemeanor and upon conviction can be fined $500 or imprisoned in county jail for one year, or both. 25 O.S. § 314. Hillary v. State, 1981 OK CR 78, 630 P.2d 791 (defendant fined after being found guilty of violating the Open Meeting Act on three separate occasions when agendas for public meetings were not posted).

c. Minutes

The minutes of a public meeting must contain an official summary of the proceedings which shows the members absent and present, the matters considered and the actions taken. 25 O.S. § 312.A. All votes must also be publicly cast and recorded. 25 O.S. § 305. When the minutes are of an emergency meeting, the minutes must also contain the nature of the emergency and the reasons for declaring such emergency meeting. 25 O.S. § 312.B.

Minutes of a meeting are public record. 25 O.S. § 312.A. Further, any person attending a public meeting may record the meeting by videotape, audiotape, or other means provided such recording does not interfere with the conduct of the meeting. 25 O.S. § 312.C.

3. Closed meetings or executive sessions

a. Definition

A public body may not hold executive session unless specifically allowed in25 O.S. § 307. However, the executive session provisions of the Act do not themselves create any legal privileges that require matters to be kept confidential and therefore, in any given instance in which an executive session may be held, the public body must determine whether an executive session is warranted. 1992 OK AG 23. Provisions of a "home rule" city charter requiring all meetings to be open must yield to the state law on executive sessions and thus the public body can go into executive session as allowed under state law. City of Kingfisher v. Oklahoma, 1998 OK CIV APP 39, 958 P.2d 170.

b. Notice requirements

If a public body proposed to go into executive session, the proposal must appear on the agenda of the regular, special or emergency meeting.25 O.S. § 311.B.1.

The agenda is posted in the same place as required by the particular meeting in which the executive session is a part.Id.

The agenda shall contain sufficient information for the public to ascertain that an executive session will be proposed, identify the item of business and purpose for the executive session and state the specific statutory authorization for the executive session. 25 O.S. § 311.B.2. See also 1997 OK AG 61 (“the word ‘identify’ as used in Section 311(B), connotes a requirement by the Legislature that public bodies must provide the public with enough information on its agenda to all the public to know the nature of an executive session discussion.”).

The items to be discussed on the agenda are limited to the areas which are specifically outlined under the Act. Public notice posted in advance of a meeting shall state if such meeting will be conducted via video conferencing. 25 O.S. § 307.1.A.2.

Any willful violation can result in a misdemeanor prosecution. 25 O.S. § 307.F.1. If the act is violated all minutes and other records of the executive session, including tape recordings, are immediately made public. 25 O.S. § 307.F.2.

c. Minutes

The minutes of an executive session must contain an official summary of the proceedings which occurred in executive session. 25 O.S. § 312.A.The Oklahoma Supreme Court has ruled that the requirement for minutes to be kept and recorded also applies to executive sessions.Berry v. Board of Governors of registered Dentists, 1980 OK 45.See also 1996 OK AG 100.

Minutes of an executive session are not public records. 51 O.S. § 24A.5.1.b.However, all votes or action concerning executive session discussions must be publicly cast and recorded. 25 O.S. § 307.E.3. Grayhill v. Oklahoma State Board of Education, 1978 OK 124, 585 P.2d 1358 (public announcement in front of board members of 5-0 vote taken in executive session satisfies requirement of publicly recording vote).The written minutes should be sealed and kept in a file separate from the regular minutes.1996 OK AG 100.

d. Requirement to meet in public before closing meeting

A majority of the quorum of members present must vote to go into executive session. 25 O.S. § 307.E.2. However, the Board of Regents of Oklahoma Colleges still holds an executive session only upon a unanimous vote of all present. Okla. Const. Art. XIII-B, § 1.

2. Photographic recordings allowed

G. Access to meeting materials, reports and agendas

Access to the records of the public is authorized under the Oklahoma Open Records Act. Unless a document is exempted from disclosure, the meeting materials, reports and agendas must be provided upon request.

H. Are there sanctions for noncompliance?

Any action taken by the public body in willful violation of the Act shall be invalid. 25 O.S. § 313. Further, any person willfully violating any provision of the Act shall be guilty of a misdemeanor punishable by up to $500 fine and/or one year in county jail. 25 O.S. § 314.

II. Exemptions and other legal limitations

A. Exemptions in the open meetings statute

1. Character of exemptions

The Oklahoma Open Meeting Act states no public body shall go into executive session unless specifically authorized in 25 O.S. § 307.Despite the language, however, there are a limited number of statutes outside the Act that authorize executive sessions.See e.g.59 O.S. §1609(B) (Board of Examiners for Speech-Language Pathology and Audiology may go into executive session to approve, grade or administer examination);74 O.S. 5060.7(C) (Oklahoma Science and Technology Research and Development Board may go into executive session to discuss proprietary information);74 O.S. § 5062.6(G) (Oklahoma Development Finance Authority may go into executive session to discuss proprietary information); 74 O.S. § 5085.6(C) (Oklahoma Capital Investment Board may go into executive session to discuss proprietary information).

The requirement to go into executive session is discretionary. See 25 O.S. §§ 307.B-C. A public body may remove itself from a public meeting to discuss specified matters set forth in the legislature. 25 O.S. § 307. However, the executive session provisions of the Act do not themselves create any legal privileges that require matters to be kept confidential and therefore, in any given instance in which an executive session may be held, the public body must determine whether an executive session is warranted. 1992 OK AG 23.

2. Description of each exemption

Public bodies may discuss appointments, hiring, employment, promotion, demotion, disciplining or resignation of a salaried public official or employee in a closed meeting. 25 O.S. § 307.B.1. The term "employment includes continued employment and the conditions of employment such as place of employment, salary, duties to be performed and evaluations." Isch v. Oklahoma Independent School District No. I-89, 1998 OK CIV APP 90, 963 P.2d 18. However, a public body cannot go into executive session for discussion of a job opening for a public officer or employee when no particular individual is to be discussed. 2006 OK AG 17. Discussions to consider awarding a contract for professional services when the recipient will be an independent contractor, rather than a public officer or employee of the public body, is also not a proper subject for an executive session. 2005 OK AG 29.School boards can discuss matters relating to volunteers as well as employees.1996 OK AG 40.

Public bodies may discuss the purchase or appraisal of real property. 25 O.S. § 307.B.3. However, the public body is restricted as to the persons who may be present in such executive sessions. 25 O.S. § 307.D. SeeLafalierv. TheLead-Impacted Communities Relocation Assistance Trust, 2010 OK 48, 237 P.3d 181 (Trust found to have violated Open Meet Act by allowing persons not authorized under 307.D. to attend executive session wherein the appraisal and purchase of real property was discussed.) Further, the Attorney General has determined that section 307.B.3 authorizes a public body to meet in executive session to discuss the purchase or appraisal of real property, but contains no authority allowing a public body to meet in executive session to discuss the sale of real property. 2007 OK AG 32.To address, in part, these decisions, the Legislature amended 25 O.S. § 307.D to authorize persons who are operating under an existing agreement to represent the public body in a land transaction.

A public body may meet with its attorney concerning an investigation, claim, or action if disclosure of the information would seriously impair the public body's ability to process the claim or conduct an investigation, litigation or proceeding in the public interest. 25 O.S. § 307.B.4. See 2005 OK AG 29 (“A "pending" claim can refer to litigation or an administrative action which either presently exists or is merely potential or anticipated.”)

A board of education may close a hearing discussing the expulsion or suspension of a student when a closing is requested by the student, his parents, attorney or legal guardian. The board may also discuss negotiations concerning employees and representative employee groups and the purchase or appraisal of real property. 25 O.S. § 307.B.5.

Public bodies may discuss matters where disclosure of information would violate confidentiality requirements of state or federal law. 25 O.S. § 307.B.7.

Public bodies may engage in deliberations or render a final or intermediate decision in an individual proceeding pursuant to Article II of the Oklahoma Administrative Procedures Act. 25 O.S. § 307.B.8.

A public body may hold executive sessions to discuss investigations into plans, schemes or acts of terrorism, assessments of vulnerability of government facilities to acts of terrorism and/or discussion of plans to prevent or respond to acts of terrorism. 25 O.S. § 307.B.9.

The State Banking Board may hold executive sessions to grant an emergency certificate of authority or a certificate to maintain a branch to a state bank assuming deposit liability of another bank. 25 O.S. § 307.C.1.

The Oklahoma Development and Finance Authority may hold executive sessions when the matter to be discussed concerns trade secrets. 25 O.S. § 307.C.3.

The Oklahoma Center for the Advancement of Science and Technology may hold executive sessions when the item to be discussed concerns trade secrets. 25 O.S. § 307.C.4.

The Oklahoma Savings and Loan Board may hold an executive session for the purpose of involuntary liquidation of a state-chartered savings and loan association upon the recommendation of the federal savings and loan corporation. 25 O.S. § 307.C.5.

The Oklahoma Health Research Committee may hold executive sessions to discuss matters pertaining to research and development of products, if public disclosure would interfere with the development of patents, copyrights, products or services. 25 O.S. § 307.C.6.

A review committee created under the Local Development Act may hold closed sessions. 25 O.S. § 307.C.7.

The Child Death Review Board may close sessions for purposes of receiving and conferring on matters relative to materials declared confidential by law. 25 O.S. § 307.C.8.

Nonprofit entities supported in whole or in part by public funds or entrusted with the expenditure of public funds for purposes pertaining to economic development may close sessions if public disclosure would interfere with development of business or violate confidentiality of the business. 25 O.S. § 307.C.10.

B. Any other statutory requirements for closed or open meetings

The Act specifically states that no public body "shall hold executive sessions unless otherwise specifically provided in this section." 25 O.S. § 307. This language is reinforced by the legislative mandate that if an executive session is proposed, the agenda shall "state specifically the provision of Section 307 of this title authorizing the executive session." 25 O.S. § 311.A.12.B.2.c. The Act does not contain any other provision which would provide a "catch-all" exemption allowing a closure of meetings as provided by law.

C. Court mandated opening, closing

III. Meeting categories - open or closed

A. Adjudications by administrative bodies

1. Deliberations closed, but not fact-finding

The Administrative Procedures Act provides "for open meetings up to the point the decision making is reached." The final decision, being a quasi-judicial action, is not required to be reached in an open meeting. Stillwater Sav. & Loan Ass'n v. Oklahoma Sav. & Loan Board, 1975 OK 50, 534 P.2d 9.

2. Only certain adjudications closed, i.e. under certain statutes

Only certain adjudications are closed (i.e. under certain statutes). The Corporation Commission when sitting in its judicial capacity as granted by the Oklahoma Constitution is not subject to Open Meeting Act requirements. Monson v. State, ex rel. Oklahoma Corp. Comm'n, 1983 OK 115, 673 P.2d 839. Further, the legislature has directed in the event that executive sessions may be held for engaging in deliberations or rendering a final or intermediate decision in an individual proceeding under the Administrative Procedures Act. 25 O.S. § 307.B.8. The Workers’ Compensation Commissioners is a quasi-judicial decision-making body and may therefor engage in confidential pre-decisional deliberations in cases considered the exercise of their judicial power.2015 OK AG 8

B. Budget sessions

C. Business and industry relations

The Oklahoma Industrial Finance Authority, Oklahoma Development Finance Authority, and the Oklahoma Center for Advancement of Science and Technology, all designed in part to promote economic development, may meet in executive session after discussing matters which might be deemed trade secrets or proprietary information. 25 O.S. § 307.C.2-4. The exclusion of competitors for a state contract from a meeting of the State Board of Corrections violates the Open Meeting Act 1979 OK AG 70.

D. Federal programs

Local boards which are supported by federal funds and/or receiving in-kind services at local taxpayer expense are covered under the Act. 1971 OK AG 245. However, such meetings may be closed where disclosure of information would violate confidentiality requirements of federal law. 25 O.S. § 307.B.7.

E. Financial data of public bodies

i. Open Meeting Act applies to meetings of the board of directors of a nonprofit corporation, where such corporation has contracted with a city and a public trust for the operation, maintenance and improvement of public property, and where the city makes annual appropriations to the public trust to pay to the corporation as an operating fee, where such meetings are held for the purpose of discussing business concerning such matters. 1980 OK AG 215.

ii. Public trusts organized under 60 O.S. §§ 176 et seq. are "public bodies" within the meaning of the Open Meeting Act, and such public trusts must comply with and are subject to the Open Meeting Act. 1981 OK AG 109.

iii. Open Meeting Act applies to meetings of the board of directors of a nonprofit corporation, where such corporation has contracted with a city for the operation, maintenance and improvements of a municipal park and the city makes annual appropriations to the corporation as an operating fee, where such meetings are held for the purpose of discussing business concerning such matters. 1981 OK AG 139.

iv. Open Meeting Act applies to meetings of the officers of a nonprofit corporation operating public property under contract with a municipality, where matters to be discussed or taken up concern the administration of the contract or the operation, improvement or maintenance of such public property. 1981 OK AG 184.

ii. The Oklahoma Development Finance Authority may hold executive session, when the matter to be discussed concerns trade secrets. 25 O.S. § 307.C.3.

iii. The Oklahoma Center for the Advancement of Science and Technology may hold executive sessions when the item to be discussed concerns trade secrets. 25 O.S. § 307.C.4.

iv. The Oklahoma Health Research Committee may hold executive sessions to discuss matters pertaining to research and development of products, if public disclosure would interfere with the development of patents, copyrights, products or services. 25 O.S. § 307.C.6.

G. Gifts, trusts and honorary degrees

H. Grand jury testimony by public employees

This issue has not been addressed under the act. However, it is a criminal offense for a person involved in the process to disclose evidence presented to a grand jury and how a grand jury may have voted. 21 O.S. § 583. It is also a criminal offense for anyone to record or listen to a grand jury's deliberations or voting. 21 O.S. § 588.

I. Licensing examinations

J. Litigation, pending litigation or other attorney-client privileges

A public body may have confidential meetings with its attorney to discuss "a pending investigation, claim or action" when disclosure would seriously impair the proceeding, but any vote to file suit must be cast in public. Oklahoma Ass'n of Municipal Attorneys v. State, ex rel. Derryberry, 1978 OK 59, 577 P.2d 1310; Berry v. Board of Governors of Registered Dentists, 1980 OK 45, 611 P.2d 628; 25 O.S.§ 307. A "pending" claim can refer to litigation or an administrative action while either exists or is merely potential or anticipated. 2005 OK AG 29.

K. Negotiations and collective bargaining of public employees

Executive sessions are authorized to discuss negotiations concerning employees and representatives of employee groups. 25 O.S. § 307.B.3. As to the actual negotiations, if the negotiating entity has actual or de facto decision-making authority on behalf of the public body, then the negotiations must be open to the public. International Ass'n of Firefighters, supra (negotiations between union and city manager not covered under act because city manager lacked authority to bind city commission).

1. Any sessions regarding collective bargaining

As to the actual negotiations, if the negotiating entity has actual or de facto decision-making authority on behalf of the public body, then the negotiations must be open to the public. International Ass'n of Firefighters, supra (negotiations between union and city manager not covered under act because city manager lacked authority to bind city commission).

2. Only those between the public employees and the public body

As to the actual negotiations, if the negotiating entity has actual or de facto decision-making authority on behalf of the public body, then the negotiations must be open to the public. International Ass'n of Firefighters, supra (negotiations between union and city manager not covered under act because city manager lacked authority to bind city commission).

The Board of Corrections is covered by the act as matter of law because of its statutory origin. Sanders v. Benton, 1978 OK 53, 579 P.2d 815. Procedure of Pardon and Parole board members to cast their votes by mail contravenes the act. 1980 OK AG 144.

M. Patients, discussions on individual patients

N. Personnel matters

The Open Meeting Act provides that an executive session may be held to discuss "employment, hiring, appointment, promotion, demotion, disciplining, or resignation of any individual salaried public officer or employee". 25 O.S. § 307.B.1. Contemporaneous with the 1978 amendment of the Open Meetings Act, the attorney general issued an opinion stating that going into executive session to discuss salaries of individual public officers or employees was not allowed under the act. 1978 OK AG 201. In 1996, the attorney general, in response to an inquiry concerning whether a public body could go into executive session to discuss salaries, issued an opinion withdrawing the 1978 opinion and stating that executive sessions could be called for the sole purpose of discussing salaries because salaries were included in the word "employment". 1996 OK AG 40. The opinion expanded even further on the definition of "employment" "to include continued employment and conditions of employment such as place of employment, salary, duties to be performed and evaluations." This opinion was subsequently adopted by the Oklahoma courts. See Isch, supra.

1. Interviews for public employment

Governing bodies may go into executive session to discuss hiring of public officers or employees. 25 O.S. § 307 .B.1. A public body may not go into executive session to discuss awarding a contract for professional services unless the recipient will be an independent contractor, rather than a public officer or employee of the public body. 2005 OK AG 29.

2. Disciplinary matters, performance or ethics of public employees

a. Public bodies may discuss appointments, hiring, employment, promotion, demotion, disciplining or resignation of a salaried public official or employee in a closed meeting. 25 O.S. § 307.B.1.

b. The Oklahoma State Board of Medical Examiners may hold more than the minimum of two meetings per year to consider disciplinary hearings if the notice requirements of 59 O.S. § 488 and the Open Meeting Law are met. 1977 OK AG 251.

c. The Oklahoma State Board of Public Accountancy is required to deliberate openly following a hearing on a complaint brought against a registrant for disciplinary action. The State Board of Public Accountancy may not confer in executive session with its attorney on legal issues raised during the conduct of an open hearing on disciplinary complaint. 1979 OK AG 32.

e. "Council on Judicial Complaints" created under 20 O.S. §§ 1658 et seq. is covered under the act except when "conducting, discussing or deliberating any matters relating to a complaint received or filed with the Council." 25 O.S. § 304.1. The statute attempted to impose penalties against any complainant, witness or judge for disclosing any information about the complaint or testimony given in the proceedings but the Attorney General ruled such restrictions were unconstitutional. 2000 OK AG 15.

3. Dismissal, considering dismissal of public employees

Governing bodies may go into closed session to discuss dismissal of an employee. 1968 OK AG 231. However, a public body may not dismiss an employee on a vote taken outside the public meeting or within an executive session. 1981 OK AG 69.

O. Real estate negotiations

Public bodies may discuss the purchase or appraisal of real property. 25 O.S. § 307.B.3. An executive session is limited to the members of the public body, its attorney and staff. No landowner, broker, developer or any other person who may profit directly or indirectly from the proposed transaction may be present or participate in the executive session. 25 O.S. § 307.D.

P. Security, national and/or state, of buildings, personnel or other

A public body may hold executive sessions to discuss investigations into plans, schemes or acts of terrorism, assessments of vulnerability of government facilities to acts of terrorism and/or discussion of plans to prevent or respond to acts of terrorism. 25 O.S. § 307.B.9.

IV. Procedure for asserting right of access

A. When to challenge

1. Does the law provide expedited procedure for reviewing request to attend upcoming meetings?

The act does not provide for an expedited procedure to challenge a refusal to attend a future meeting. The two available means of relief would be to seek an injunction in District Court or to seek a writ of mandamus from the State Supreme Court.

2. When barred from attending

The Act does not provide an expedited procedure. It does, however, allow for the actions taken in violation of the Act to be declared null and void. In re Appeal of the Order Declaring Annexation Dated June 29, 1978, supra (court invalidated action of board taken in violation of Open Meeting Act).

4. For ruling on future meetings

If a person is able to have the appropriate government agency or official to make the request, an Attorney General ruling could be obtained on the legality of a meeting of a public body. See 74 O.S. § 18b(e). If a controversy exists and is continuing, then declaratory relief could be available. See 12 O.S. §§ 1651 et seq.

5. Other

B. How to start

1. Where to ask for ruling

a. Administrative forum

While it is not advisable to follow the Administrative Procedures Act because it not only is not necessary but it would also be too cumbersome, if a challenge were made through the APA it would first be made with the agency. After an order has been entered denying the access, that order would be appealable to the District Court. This is an unnecessary step because an action can be maintained in District Court alleging violation of the Open Meeting Act and seeking an injunction.

b. State attorney general

The Attorney General may issue advisory opinions upon questions of law submitted by certain state officials. 74 O.S. §§ 18b.(d) and (e). The public officer with notice of the ruling is bound by it until relieved of the ruling by a court of competent jurisdiction. Pan American Petroleum Corp. v. Board of Tax-Rolle Corp., 1973 OK 52, 510 P.2d 680.

c. Court

The Oklahoma Open Meeting Act confers a private right of action on the part of any member of the general public who claims to be aggrieved by the actions of a public body.Rabin v. Bartlesville Redevelopment Trust Authority, 2013 OK CIV APP 72.

4. How long should you wait for a response

5. Are subsequent or concurrent measures (formal or informal) available?

If possible to do in advance, it is always advisable to request access to a meeting to which one has reason to believe he will be excluded. Once denial is given, then the person can proceed to district court.

C. Court review of administrative decision

1. Who may sue?

The Oklahoma Open Meeting Act confers a private right of action on the part of any member of the general public who claims to be aggrieved by the actions of a public body.Rabin v. Bartlesville Redevelopment Trust Authority, 2013 OK CIV APP 72.

2. Will the court give priority to the pleading?

3. Pro se possibility, advisability

It is possible to proceed pro se if one has a grasp of the wording in the Act, i.e. what is a public body, what is a meeting, etc. With a little knowledge, a petition could be drafted. However, the Act does not specifically provide for civil relief. Therefore, the petition must be drafted to seek either injunctive or declarative relief in district court, or possibly a writ in the State Supreme Court. It would be advisable to engage legal help in pursuing such a course to ensure that the procedural guidelines are followed. Otherwise, the action could be dismissed without ever reaching the substantive issue.

4. What issues will the court address?

a. Open the meeting

b. Invalidate the decision

Hayworth, supra (board hiring of superintendent invalidated because not listed on agenda); Order Declaring Annexation, supra (vote on annexation invalidated because vote not called in compliance with act). However, the court upheld city's hiring of an employee during a meeting which violated the Act when the employee's contract was not approved until a later meeting held in compliance with the Act. City of Bixby v. State ex rel. Dep't of Labor, 1996 OK CIV APP 118, 934 P.2d 364. A vote taken on an item not listed on the agenda for the public meeting is a willful violation of the Act and is invalid. 2000 OK AG 7.

c. Order future meetings open

5. Pleading format

There is no specific civil relief provided in the Act. To plead a cause of action, the petition should contain a statement showing that defendant is a public body, the wrongful action was part of the public meeting process, and the specific wrongful action alleged, i.e. not an agenda, failure to give notice, inadequacy of notice, unauthorized executive session, etc. Any action taken in willful violation of the Open Meeting Act "shall be invalid." 25 O.S. § 313. Willful is defined "to include any act or omission which has the effect of actually deceiving or misleading the public regarding the scope of matters to be taken up at the meeting. This would also include agency action which exceeds the scope of action defined by the notice." 2000 OK AG 07.

2. Time limits for filing appeals

3. Contact of interested amici

Amicus briefs may be filed by consent of the parties or by leave of the Chief Justice of the Supreme Court. The amicus curiae must file a statement not exceeding five pages disclosing the nature of the interest, the factual or legal questions which are not adequately addressed by the litigants and the relevancy of the factual or legal questions to the disposition of the case. Upon showing of extraordinary circumstances, the amicus curiae may be allowed to participate in oral arguments. 12 O.S. Ch. 15, App. 2, Rule 1.28a.

The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state's highest court.

V. Asserting a right to comment

A. Is there a right to participate in public meetings?

Neither the Open Meeting Act nor "the First Amendment to the United States Constitution provides an opportunity for citizens to express their views on issues being considered by a public body, but a public body may voluntarily choose to allow for such comments." 2002 OK AG 26. See also 1998 OK AG 45; 2004 OK AG 44.

B. Must a commenter give notice of intentions to comment?

There are no specific rules on this issue. However, once a public body voluntarily establishes an open forum, it may establish the conditions and restrictions on such speech subject to reasonable time, place and manner restrictions. 1998 OK AG 45.

C. Can a public body limit comment?

When a public body voluntarily establishes an open forum, then any content-based restriction must be narrowly drawn to effectuate a compelling governmental interest, applying principles contained in the First Amendment to the United States Constitution. 1998 OK AG 45. A public body may, however, limit public comment to items listed on the agenda. If no limits are placed on the subject matter of public comment, then an agenda item for "public comments" is sufficient notice that citizens may speak on any issue. 2002 OK AG 26.

D. How can a participant assert rights to comment?

E. Are there sanctions for unapproved comment?

This issue was not addressed in the attorney general opinion. However, a public body cannot allow comment on items not listed on the agenda if the agenda states the public comments are limited to agenda items. 2002 OK AG 26.